Deputizing Homeland Security

Abstract

In the wake of the attacks of September 11, 2001, private actors have come to occupy a remarkably prominent place in efforts to identify and counter threats of domestic terrorism. Today, seemingly no transaction, whether social, political, or economic, is comfortably beyond eye or earshot of the newly deputized national security apparatchiks. Corporations representing all of the major retail and service industries – including telecommunications, finance, and commercial travel – are routinely turning over reams of information to the government. And, it’s not just corporate data dumps; it’s also doormen, pilots, truck drivers, retail clerks, repairmen, and parcel couriers, who have been enlisted by the government, their employers, and even their own unions to detect and report suspicious activities on the ground. Finally, there is the role being played by ordinary folks, who have been bombarded with calls from government officials to do their part to keep America secure.

Four factors help explain this dramatic rise in citizen and corporate participation: first, a post-9/11 demand for greater surveillance and intelligence-gathering capacity; second, a growing comfort with private actors handling sensitive national security tasks; third, a recognition that much of the desired information is easier for private actors to access or acquire in the first place; and, fourth, widespread interest on the part of a patriotic, frustrated public to help.

Enter our new cadre of private snoops, data crunchers, and (yes) vigilantes. This assortment of “deputies,” some trained and ostensibly commissioned, some solicited as part of a general, mass invitation, and some merely self-declared and possibly unwelcomed, have expanded homeland-security coverage in profound ways. Deputies are force multipliers; as a matter of sheer numbers, a mobilized, vigilant public can reach more broadly than the government, on its own, can. The public does so simply by going about its routine social, civic, and commercial activities in a more mindful manner. Additionally, deputies may have superior physical and electronic access to private spaces and stores of data than government agents have on their own – a function both of there sometimes being greater legal constraints imposed on government agents than on private actors and of the greater caution and reserve people typically exercise when they are interacting with the government, as opposed to when they are engaging with neighbors and merchants, or when they are relying on commercial service providers to facilitate their transactions.

Notwithstanding the apparent utility of harnessing the private sector for force multiplication and superior access, deputization has changed us – our identities, institutions, and laws – in equally profound ways. This Article first describes the deputization phenomenon and surveys a sampling of its manifestations, sophisticated and low-tech alike. Second, it identifies and addresses the legal uncertainties and ambiguities underlying some of these deputization programs. The ambiguities arise as private actors-turned-deputies move out of the purely private realm, begin to occupy unregulated or underregulated, hybridized private-public space, and participate in the exercise of sovereign power often far beyond what society currently contemplates and what the law currently constrains. These ambiguities in the deputies’ legal status enable the formation, operation, and success of many deputy partnerships, particularly those where private assistance is about something more than just force multiplication. Yet, they are just as relevant in creating or exacerbating the challenges these partnerships pose – challenges of social and economic dislocation, legal evasion, and even compromised security policy. Third, it sketches an analytical and normative framework – applicable in the homeland-security context and, perhaps, beyond – for assessing whether, as an institutional matter, individual deputization arrangements operating in legally uncertain space ought to be deemed acceptable or rendered subject to greater regulatory constraints.